Testamentary capacity is most commonly an issue when a testator prepares a new will later in life, against a form of progressive dementia, whether it became apparent before or after the creation of the will.
The Main Question to be Considered
In cases regarding progressive dementia, the question is whether the mental deterioration has deprived the testator of his or her testamentary capacity. If the testator has been deprived of their capacity, it is likely (but by no means certain) that the will they signed will be invalid. Pursuant to the case of Johnson v Huchkewich (2010 ONSC 6002), a diagnosis of dementia is not tantamount to a lack of testamentary capacity.
Requirements for Capacity
As established in Banks v Goodfellow [(1870), [1861-73] All ER Rep 47], “the standard of capacity in cases of impaired mental power, is…the capacity on the part of the testator to comprehend the extent of the property to be disposed of, and the nature of the claims of those he is excluding.” In applying the test for testamentary capacity, it is important to ensure that the testator was capable of appreciating the terms of the will, but also the circumstances surrounding the making of the will. The testator must be able to recall and comprehend circumstances beyond a range of familiar topics. As defined in Leger v Poirier (1944 CarswellNB 11), the individual must be able to have a “disposing mind and memory”, which is able to “comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like.”
Therefore, in a case where an individual has progressive dementia and is attempting to make a testamentary document, the lawyer has an obligation to ascertain if the individual can appreciate the circumstances as a whole. The ability for the testator to rationally respond to questions is not enough to determine that the individual has full capacity.
Furthermore, it bears repeating that a testator who is incapable to manage his or her affairs due to progressive dementia, does not necessarily lack testamentary capacity. As established in the case of Cranford’s Will, Re, (1978 CarswellNfld 23), “in determining the testamentary capacity of an aged person it is necessary to be careful not to substitute suspicion for proof so as to render it impossible for old people to make wills…”
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This September marks the fifth annual World Alzheimer’s Month. World Alzheimer’s Month and World Alzheimer’s Day, which took place on Wednesday, are part of a campaign to increase awareness of dementia and related misconceptions.
In honour of World Alzheimer’s Day, Global News posted an article outlining five common misconceptions about dementia. They focused on the following:
- “Misconception: A diagnosis of Alzheimer’s disease or dementia means my life is over.” Individuals can continue to live and function normally for years despite a diagnosis with Alzheimer’s disease.
- “Misconception: Dementia is a disease of the elderly.” Although the likelihood of developing dementia and other memory issues may increase with age, early-onset dementia can affect individuals in their 40s or 50s. In Canada, approximately 16 thousand of those living with dementia are under the age of 65.
- “Misconception: There’s nothing I can do to prevent or stave off dementia.” Research suggests that there are ways to limit the risks of developing dementia, such as an active and social lifestyle and a healthy diet.
- “Misconception: Dementia and Alzheimer’s disease are all about memory loss.” Dementia goes deeper than memory loss and this misconception may trivialize the disease.
- “Misconception: One of my parents had Alzheimer’s disease, so I’m going to get it, too.” The most common forms of dementia do not appear to be genetically inherited, so the risk of developing Alzheimer’s is only loosely connected to family history of the disease.
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Our population is aging but living longer. This has resulted in an increase in the prevalence of dementia and other aging-related conditions associated with cognitive decline, and a corresponding increase in the use and activation of powers of attorney.
As estate litigators, our firm is beginning to see a rise in power of attorney disputes between siblings and other family members. These types of disputes are often emotionally fuelled by longstanding sibling rivalry or distrust among family members, and can result protracted litigation and expensive legal bills.
Often a sibling or other family member will have concerns that the appointed attorney is acting improperly or is failing to fulfill his or her duties. In these circumstances, the sibling or family member may have concerns with respect to a lack of transparency or feel that they are being left out of the decision-making process.
It is useful for these individuals to know that the Substitute Decisions Act, 1992 (the “SDA”) imposes certain obligations upon an attorney, which may assist in addressing these concerns.
The SDA states that an attorney has a duty to consult with family members and keep them informed as to the incapable person’s health and wellbeing (ss. 32(5)) and that an attorney has a duty to foster personal contact between the incapable and his or her supportive family members (ss. 32(4)).
The SDA also states that an attorney has a duty to keep proper records and to provide updates regarding the incapable person’s financial circumstances (ss. 32(6)).
The SDA also states that an appointed attorney must also obtain and review a copy of the incapable person’s Will (s. 33.1). If the Will provides that a specific item of property is to be given to a particular beneficiary, the attorney must retain that property for that beneficiary unless it is essential to sell the item in order to satisfy the incapable person’s legal responsibilities or otherwise provide for the incapable person (ss. 35.1(1)).
These duties are ongoing and an attorney can generally be held personally liable for any damages that results from a breach of his or her duties.
The Office of the Public Guardian and Trustee has published a brochure that outlines the duties and powers of an appointed attorney for property in greater detail, which can be viewed here.
Communication is often the key to resolving these types of disputes between family members. However, where there is a breakdown in communication, the assistance of a litigator or mediator who specializes in this practice area is often helpful.
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If you have been to a wedding or to university within the last several decades, you know Spirit of the West’s anthem “Home for a Rest“. If ever there was a song guaranteed to get you up onto your feet and the party started, this is the song. I know I personally cannot think of my early days at university without it playing somewhere in the background. It is for this reason that I read with great sadness the Globe and Mail’s report that Spirit of the West will be performing their final ever show this coming weekend.
Spirit of the West’s lead singer, John Mann, who is only 53 years old, has previously been diagnosed with early-onset Alzheimer’s. While the band had previously advised that they hoped to keep performing for as long as possible, only two years after making the diagnosis public, the band has advised Mr. Mann’s status has declined such that the time is right to bring the show to an end. Mr. Mann’s story echoes that of country legend Glen Campbell, who recently publicly played out his own battle with Alzheimer’s, releasing the gut-wrenching “I’m Not Gonna Miss You” as his final song, detailing his battles with the disease.
While hearing stories like those of Mr. Mann and Mr. Campbell are never easy, they provide us with the important opportunity to remind ourselves that no one in this world is necessarily immune from issues affecting their capacity. While it can sometimes be difficult to talk about, stories like these remind us of the importance of executing documents such as a Power of Attorney for Property and Power of Attorney for Personal Care to ensure that you are properly looked after should you become incapacitated.
While we may no longer be able to hear Spirit of the West perform live in person, their music will no doubt live on for years to come. So without further ado, take me home: Spirit of the West – Home for a Rest (Music Video)
We have recently highlighted some of the interesting ways in which medical and technological experts and policymakers across the globe are responding to dementia. With an aging population and the increasing prevalence of Alzheimer’s disease and other dementias, there is a growing need to focus on how to create a more dementia-capable society.
In instances where a individual living with dementia is no longer able to make decisions regarding their care, that responsibility falls to the individual’s substitute decision-maker. Substitute decision-makers may be required to make important and difficult decisions about the incapable person’s care, such as the use of caregivers and home support services.
Individuals who are tasked with making decisions regarding the care and companionship for people living with dementia may soon have a new option available to them. Reuters recently profiled Nadine, a humanoid robot developed by scientists at the Nanyang Technological University that may someday be used as a companion for individuals living with dementia.
According to the university, Nadine is a “social robot,” which means that she has a memory and personality of her own and is able to exhibit moods and emotions. Nadine currently works as a receptionist at the university, and could also serve as a personal assistant or companion to the elderly.
Nadine’s creator, Professor Nadia Thalmann of the Nanyang Technological University, has suggested that Nadine may be particularly useful as a companion for individuals who are living with dementia. She is quoted in Reuters as saying, “if you leave [individuals with dementia] alone they will be going down very quickly. So these people need to always be in interaction.”
With human-like features and emotional intelligence to boot, Nadine provides an interesting example of the creative ways in which technology could address the needs of people living with dementia. We recently highlighted another example: the story of “Paro” the harp seal, a Japanese automoton that was one of the earlier robotic inventions to be used in dementia care. However, it remains to be seen if this new technology will ultimately be put to use in individual and institutional care settings.
In the meantime, if you would like to see Nadine the humanoid robot at work, don’t miss this YouTube video of Nadine interacting with Professor Thalmann.
Thank you for reading and have a great weekend,
According to the News Release, the Finding Your Way program is a “multicultural safety campaign that helps people with dementia stay safe and active, while helping to prevent the risk of wandering and going missing.” It notes that the program’s training services will be enhanced this year to include both first-responders as well as supportive housing and retirement home staff.
The Finding Your Way program is specifically focused on addressing and preventing individuals with dementia from going missing and states that 60% of people with dementia related memory problems become lost at some point. Their website provides some resources, including checklists for What to do when a person with dementia goes missing and What to do when reuniting after a missing incident. They also provide some suggestions of ways to reduce the risks associated with dementia. The first suggestion is to stay safe at home, by considering the best living arrangements for someone with dementia and ensuring that individuals with dementia maintain their health. The second suggestion is to be a part of the community while reducing the risk of becoming lost by carrying identification at all times, ensuring that someone knows where the senior with dementia is going, and dressing appropriately for the weather. The third suggestion encourages getting around in the community by urging seniors with dementia to get to know their neighbours and professionals in the neighbourhood (i.e. pharmacists, grocers, bankers), as well as participating in social activities.
The Alzheimer Society of Ontario’s website provides some “Dementia numbers in Canada” stating that in 2011, 14.9 per cent of Canadians 65 and older were living with Alzheimer’s disease and other dementias, with the figure expecting to increase. It also notes that one in five Canadians aged 45 and older provides some form of care to seniors living with long-term health problems. In 2011, family caregivers spent over 444 million unpaid hours looking after someone with cognitive impairment, including dementia. It is clear that dementia affects a great deal of people in Canada and in Ontario.
The Minister Responsible for Seniors Affairs stated in the News Release that “[o]ur communities have an important role to play in helping keep people with dementia safe, and this funding will help the Alzheimer Society of Ontario to deliver these resources to even more Ontarians.”
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As Alzheimer Awareness Month draws to a close, the message the Alzheimer Society of Canada intended to convey in the #StillHere campaign is clear: A diagnosis of dementia does not necessarily mean that an individual is no longer capable of functioning in their daily life.
According to the Alzheimer Society, dementia is often misunderstood. As a result, there can be many stigmas attached to a diagnosis that can impact a person’s ability to effectively manage the disease. For instance, in a survey conducted where participants were asked whether a person living with dementia can continue to live well, half of the respondents answered that they believed that they could not. It is these types of misconceptions and negative attitudes towards dementia that the #StillHere campaign set out to change.
Challenging these perceptions is not always easy. The #StillHere campaign has provided an excellent start with educational videos and stories from persons living with dementia in an effort to encourage the public to test their assumptions. As the Alzheimer Society notes, dementia exists on a spectrum and people with dementia can continue to engage with society in meaningful ways.
In the context of estate litigation, it is quite common to witness the effect that these preconceptions can have. For instance, a will is not automatically invalid as a result of the testator having been diagnosed with dementia prior to its execution. The test for testamentary capacity must be applied and in many cases, it can be found that despite such a diagnosis, the testator was still capable of meeting this standard.
The same can be said with respect to Powers of Attorney for Personal Care. A diagnosis of dementia does not automatically assume that the individual is incapable and that the attorney can now make personal care decisions on their behalf. The diagnosed individual must first be found to be mentally incapable pursuant to s. 45 of the Substitute Decisions Act; a finding that is not necessarily synonymous with a diagnosis of dementia.
Despite legitimate challenges associated with mental impairment, it is important to recognize that a diagnosis of dementia does not immediately suggest the loss of individuality or identity. There is no doubt that dementia is progressive and can eventually lead to severe cognitive impairments; however, as the Alzheimer Society so aptly notes in their campaign, “Life doesn’t end when Alzheimer’s begins.”
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The increasing prevalence of Alzheimer’s disease and other dementias means that policymakers and various sectors – including the legal community — have to think about how to create a more dementia-capable society.
For instance, I recently blogged about DementiaHack, a Toronto-based hackathon designed to bring medical experts on dementia together with developers and designers to think of innovative technological products to address the needs of individuals living with dementia, caregivers and researchers.
For those who are interested in learning more about dementia, the Toronto Star recently ran an excellent series of articles about local and global responses to the increasing prevalence of dementia.
I found it particularly interesting to read about the lessons that can be learned from Japan’s experience, where dementia currently affects 4.62 million people. As the article notes, Japan’s health ministry and 11 other ministries and agencies implemented a strategy in 2012 to address the challenges of dementia. The government also introduced a long-term care insurance program in 2000 that requires residents to pay monthly insurance premiums after they turn 40. By contributing to the program, residents become eligible to access services such as dementia daycare.
Beyond governmental action on dementia, the Star also profiled the Dementia Support Caravan initiative in Japan, which aims to educate and empower people across the country to better support the needs of people living with dementia. And for a Canadian spin on the Japanese experience, be sure to check out this article about “Paro”, a robot that was inspired by a Japanese engineer’s encounter with a Canadian harp seal and that is now being used in dementia care.
The Toronto Star ended its series on dementia with an editorial calling on the provincial and federal governments to create a national strategy. It remains to be seen if policymakers will heed the call to action, but the series offers remarkable insight into how other countries are responding to the increasing prevalence of dementia.
Thank you for reading and have a great weekend.
Umair Abdul Qadir
Here are some sobering facts: according to the Alzheimer Society of Canada, 747,000 Canadians were living with Alzheimer’s disease and other dementias in 2011. If nothing changes in Canada, this figure is expected to rise to 1.4 million people by 2031.
Beyond the economic costs, dementia can put immense pressures on family caregivers. According to the Alzheimer Society, family caregivers spent 444 million unpaid hours in 2011 towards the care of someone living with dementia, a number that could rise to 1.2 billion unpaid hours per year by 2040.
Given the increasing prevalence of dementia, many sectors – including the legal community – are thinking about how to improve the quality of life for people with dementia and create a more dementia-capable society. For example, I recently came across an interesting event called DementiaHack, a hackathon that will be taking place in Toronto from November 7 to 9, 2015.
For those who are unfamiliar with the concept, a “hackathon” is an event that allows tech types – such as computer programmers and software developers – to work collaboratively on new projects over a short timeframe. Now in its second year, DementiaHack brings together leading medical experts on dementia with developers and designers, challenging them to develop new and innovative products to address the needs of individuals living with dementia, as well as family caregivers, institutional caregivers and researchers.
For this year’s event, hackathon teams will work intensively over the weekend to develop innovative solutions to the challenges of dementia. The weekend will culminate in science fair demos on Sunday, November 8. Then, on November 9, the hackathon finalists will show off their wares to an audience of potential investors and customers. The most successful teams will be eligible to receive a number of different prizes, including a grand prize that consists of a business trip to the United Kingdom to pitch their project at a health conference.
It is exciting to see the work that is being done to support the needs of people living with dementia. If you are interested in learning more about DementiaHack, visit their website for more information about this year’s event. And be sure to check out the Youtube video for the demonstration for last year’s grand prize winner, CareUmbrella, a project that used smartphones and Near Field Communication (NFC) tags to help improve the lived experience of people living with dementia.
Thank you for reading and have a great weekend.
Umair Abdul Qadir
This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss a recent paper by Wendy Griesdorf, which highlights the differences between delirium and dementia, and the relevance of this distinction within the context of estate and guardianship proceedings.
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